www.elsblog.org - Bringing Data and Methods to Our Legal Madness

27 June 2011

Turner-Inspired ELS Research

Over at Concurring Opinions, Jim Baillie's interesting post on the recent Turner decision will resonate with many ELS Blog readers. As Jim notes, “. . . [A]re there any data to show that in most of these cases counsel does, in fact, appear?” (Justice Kennedy, presumably the swing vote in the 5-4 decision). “Is there any model, any state where there is such a procedure?” (Justice Ginsberg asking about the substitute procedural safeguards which may serve as an alternative to counsel.) “ … [H]ow often [do] these proceedings have the State on one side, how often [do] they have the custodial parent on one side … whether there are counsel on the opposite side in many of these cases?” (Justice Kagan)."

In developing his point, Jim also identifies some concrete research opportunities for those contemplating pursuing Turner-inspired empirical research.

"1. How do the outcomes compare between those states that provide counsel and those which do not as to (a) use of civil contempt, (b) incarceration and (c) payments?

2. Which “substitute procedural safeguards” (as suggested in the Supreme Court’s opinion) are in use: (a) a notice that gives the respondent warning of the risk of jail, (b) forms to elicit information about the ability to pay, (c) opportunity for the respondent to speak at a hearing, and (d) express findings by the court imposing the penalty? What is the efficiency and the fairness of these procedures and others that may be tried?"

Of course, Jim's first suggestion bumps up against an earlier discussion about Jim Greiner recent effort to assess the efficacy of legal representation (broadly defined) (discussed here, here, and here).